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THE death of Jack Adcock at Leicester Royal
Infirmary was a tragedy for all concerned: the
devastating loss of a son for the Adcock family
and a gruelling seven-year ordeal for one of
the doctors involved in his care, Dr Hadiza
Bawa-Garba. Criminal and regulatory decisions
made following Jack’s death have had wide
implications for the medical community as a
whole, particularly around reflective practice.

On the incident date – 18 February 2011 – Dr Bawa-Garba
was the most senior paediatric junior doctor on site at
Leicester Royal Infirmary. She had just returned after 14
months of maternity leave. The lead consultant was off-site
and the paediatric team were three doctors down. Patients
were on six wards over four floors. The computer system
was down, resulting in delays in obtaining test results.

Jack was referred to the Children’s Assessment Unit by
his GP. He had Down’s syndrome and a hole in the heart.
On admission he was unresponsive and limp with a history
of diarrhoea and vomiting, shallow breathing and slight
cyanosis of the lips. Jack was suffering from pneumonia
and sepsis, but the diagnosis was never made. Later that
day the sepsis caused heart failure, but there was a delay in
resuscitation as Dr Bawa-Garba mistook him for another
patient who had DNACPR in place. However, this had no
impact on the outcome and Jack sadly died at 21:20.

The hospital’s serious incident (SI) report made 23
recommendations and identified 79 actions to be taken but
identified no single root cause.

CRIMINAL CHARGES

In November 2015, Dr Bawa-Garba and agency nurse
Isabel Amaro were prosecuted for gross negligence
manslaughter (GNM). The jury found that Dr Bawa-Garba
had made a significant number of errors that were “truly,
exceptionally bad”. Both Dr Bawa-Garba and nurse Amaro
were convicted and received two-year prison sentences,
suspended for two years.

The judge commented that:
"There was no evidence that either of you neglected
Jack… You both had other patients to attend to. The
problem was that neither of you gave Jack the priority
which this very sick boy deserved and, in your case (Dr
Bawa-Garba) you were falsely reassured by the apparent
improvement in Jack’s condition from the treatment which
you did give him."

The judge also noted: "yours was a responsibility shared
with others".

Dr Bawa-Garba was twice refused leave to appeal.

In June 2017, the Medical Practitioners Tribunal (MPT)
found that Dr Bawa-Garba’s fitness to practise (FTP) was
impaired and she was suspended for 12 months. The GMC
appealed to the Divisional Court and in January 2018 the
court substituted suspension with erasure. In August 2018,
the erasure was overturned by the Court of Appeal who
referred the case back to the MPT for the suspension to be
reviewed. Whilst they acknowledged that there are some
cases where erasure is the only proper sanction, this was
not one of them.

Following the criminal trial there was a media storm
which heightened after the Divisional Court’s decision.
Doctors were concerned about the appropriate use of
reflective materials in court proceedings and there were
other concerns, including prosecution for GNM in a
healthcare setting and the power of the GMC to appeal
decisions. Subsequently, two reviews were commissioned:
the government’s Williams Review and the GMC’s
Hamilton (formerly Marx) Review.

REFLECTIVE GUIDANCE

It’s a popular misconception that Dr Bawa-Garba’s
reflective journal was used at her criminal trial. Both
her defence organisation and the Crown Prosecution
Service confirmed that this was not the case, and neither
the journal nor her appraisal are mentioned in the MPT
decision. We now know that evidence was given during
the criminal trial in support of Dr Bawa-Garba by her
supervisor, Dr Cusack, which referred to her reflections.

In the midst of the Bawa-Garba proceedings, LMCs (local
medical committees) lobbied the BMA to formally state that
doctors should refrain from reflective practice. However,
the GMC were quick to respond, issuing a formal statement
warning doctors that they risk jeopardising revalidation
unless they actively engage in reflective practice.

The Williams review has recommended that the GMC
should not be able to request reflections in FTP cases.
Currently, the GMC does have power to apply to court for
an order for specific disclosure, although the GMC has
now confirmed it will not compel disclosure of doctors’
reflections. Unfortunately this does not extend to clinical
negligence claims against doctors.

Guidance on reflective practice (The reflective
practitioner) has been published by the GMC, the
Academy of Medical Royal Colleges, the Conference of
Postgraduate Medical Deans and the Medical Schools
Council. Key points in the document include:

Anonymisation of details – this has to be more than
simple removal of the patient’s personal identifiers such
as name, age or address. The GMC defers to the definition
from the Information Commissioner’s Office: data is
anonymised if it does not itself identify any individual,
and if it is unlikely to allow any individual to be identified
through its combination with other data.

Focus on learning and future plans.

Record factual details elsewhere (e.g. SI reports).

Be open and honest, reflecting on both positives and
negatives.

The value of team reflection, which often leads to ideas
to improve patient care.

DISCLOSURE

In which type of proceedings are reflections disclosable?

Civil proceedings. Reflections are disclosable if they are
“relevant” and either support or adversely affect a party’s
case. Therefore, care needs to be taken when writing in a
reflective journal. Anonymisation has to comply with the
ICO’s definition which means that reflecting on a specific
incident is likely to be disclosable. A reflective piece would
only be protected from disclosure if it is suitably generic and
cannot be traced back to the patient or incident in question.
The focus should be on learning rather than writing at
length about the incident and what has gone wrong.

GMC proceedings. The GMC has confirmed that
it does not request reflective notes. However, it can be
helpful for doctors to submit them to show insight. The
balance between being insightful yet minimising the
risk of reflections being disclosed in any concurrent civil
proceedings is a fine one. If advised by your medical
defence organisation, apologise and accept errors early on
notwithstanding any systems failings which can be used
in mitigation. Write reflections early on and throughout
the proceedings, e.g. after attending remedial training
courses to reflect on learning points. In the wake of Dr
Bawa-Garba’s case, the GMC has confirmed that it will
not require disclosure of doctors’ reflective records as part
of any fitness to practise proceedings, and the Hamilton
review is looking at the possibility of introducing legal
privilege for all reflective records so that doctors cannot be
compelled to disclose them.

Criminal proceedings. Unlike civil proceedings there is
no obligation for a doctor to disclose appraisals/reflections
in criminal proceedings, although the CPS could apply
for disclosure of such documents. However, the CPS
confirmed that reflective notes did not form part of the
criminal case against Dr Bawa-Garba and, in the current
climate, they may now be cautious in seeking disclosure of
such documents in criminal proceedings against a doctor.

THE FUTURE

The Hamilton review will be published early next
year offering greater insight. The GMC also recently
announced that its investigators are to be given human
factors training to "ensure that context and systems issues
are always fully taken into account". This is welcome
news, as is Sir Robert Francis QC’s recent evidence to the
Health and Social Care Committee. It has often been felt
that doctors are left to stand alone when things go wrong
but the former Chair of the Mid Staffs Inquiry has called
for senior NHS managers to be held to account in the same
way as their doctors and nurses when systems failures
lead to medical error.

At the end of a long and difficult journey for Dr Bawa-Garba and the Adcock family, it seems that change is on
the horizon.

Joanna Bower is a partner in the clinical law department
at Capsticks Solicitors LLP

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